Comments made on Facebook over a five-month period were capable of amounting to a continuing course of discriminatory conduct, with the result that the employee’s tribunal claims had been lodged in time. The posts were by the same people and on the same subject - the fact that they were posted across two periods separated by seven weeks did not prevent there being at least arguably a continuing act of harassment.

The family of an employee who was murdered at work by a colleague has been allowed to proceed with its claim that his employer was liable for his murder. They are claiming that Sainsbury’s are vicariously liable for his death under the Protection from Harassment Act 1997. The Court of Session rejected Sainsbury’s argument that the family would not be able to establish the sufficiently close connection between the harassment complained of and the offending employee’s employment duties for liability to arise.

To determine whether or not an employee has been harassed, his or her own perceptions and feelings must be explored to determine whether the effect of the unwanted conduct was to violate his or her dignity or create an adverse environment. A tribunal should then decide whether or not it was reasonable for the employee to hold this feeling or perception, and if it is then the conduct complained of will amount to harassment. The EAT upheld a tribunal’s decision to reject a harassment claim, having taken into account evidence that the employee had previously engaged in similarly offensive conduct, and made no complaint until he deemed that one particular incident to go too far.

An employer was not liable under the Race Relations Act, to an employee for the actions of a third party who was outside its control, where those actions created a hostile, intimidatory, degrading, offensive or humiliating environment for the employee. And even under the new provisions on third-party harassment under the Equality Act, it’s unlikely that this employee would have succeeded in her claim.

To succeed in a claim under the Protection from Harassment Act, an employee must show that the behaviour complained of amounts to at least two instances of oppressive and unacceptable conduct that is targeted at him and calculated to cause him alarm or distress. A simple situation of two people ‘not getting on’ in the workplace will not be sufficient to support a claim. And what amounts to harassment will depend to a large extent on the context of the working environment in which the conduct takes place.

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